New Government Gaza Report Cites International Law To Defend Actions

A Different Tactic in Response to Charges of Human Rights Abuses

White Phosphorus: Israel’s new report states that shells containing the incendiary chemical were used only in ‘open, unpopulated areas,’ but ‘unfortunately may have landed’ at an elementary school in Beit Lahia. Critics say the photo of Palestinian civilians fleeing the school, above, belies the claim.
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White Phosphorus: Israel’s new report states that shells containing the incendiary chemical were used only in ‘open, unpopulated areas,’ but ‘unfortunately may have landed’ at an elementary school in Beit Lahia. Critics say the photo of Palestinian civilians fleeing the school, above, belies the claim.

By Gal Beckerman

Published August 05, 2009, issue of August 14, 2009.
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Israel’s formal response to the onslaught of criticism it has absorbed over its winter military campaign in Gaza finally arrived late last month. And though the report is exhaustive, its reply to the hail of human rights and war crimes charges has essentially boiled down to one crucial point:

Intent.

The 160-page Israeli analysis dismisses out of hand the more controversial claims of human rights organizations, which have accused Israel of using Palestinian children as human shields, destroying property indiscriminately and purposefully targeting populated areas during the three-week-long operation.

At the same time, it offers a systematic and full-throated justification for some of the more sensational events of the war, among them the use of incendiary white phosphorous and the shelling of the house of Dr. Izzeldin Abuelaish, the well-known and widely admired Palestinian gynecologist working in Israel whose three daughters were killed in the bombardment.

In describing those and many other incidents, and addressing the crucial issue of civilian deaths — nearly 1,000 by the Palestinians’ count, 300 by Israel’s — the report relies heavily on the language of international law. Though the civilian causalities are described as “unfortunate” and as “tragedies,” the Israeli military said it never intended to kill innocent people, and so its actions fall within international law.

That, says the report, released by Israel’s Foreign Ministry on July 29, is the crucial distinction between the actions of Israel and of Hamas, the Palestinian political faction and militia group that controls Gaza. Hamas’s rockets — fired into Israel for many years prior to Israel’s incursion into Gaza last December and January — were the proximate cause cited by Israel for its campaign.

“Hamas’s deliberate attacks against Israel’s civilian population violated [international] standards, and this constituted a violation of international law,” the report asserts. “The IDF’s attacks directed against Hamas military targets, despite their unfortunate effects on Gaza’s civilian population, did not.”

That said, the report also reveals that there are still 100 outstanding complaints being investigated and 13 criminal probes yet to be resolved.

According to Gerald Steinberg, head of the watchdog group NGO Monitor, which tracks and rebuts the accusations leveled at Israel by human rights organizations, this is an unprecedented attempt by the military to fight groups such as Human Rights Watch and Amnesty International on their own turf.

These groups ground their frequent allegations of war crimes by referring to the internationally agreed-upon tenets of warfare. Steinberg said it is only now that the military has joined the Foreign Ministry in its attempt to counter these claims by making use of these same tenets.

“This is an attempt to take that weapon away from them,” Steinberg said. He added, however, that this was “a very late response” in what he saw as an “ongoing political war.”

Many observers saw the report, too, as a pre-emptive response to the investigation being conducted for the United Nations Commission on Human Rights by Richard Goldstone, a generally respected former South African Supreme Court justice whose own report also will include his findings regarding alleged war crimes by Hamas.

Goldstone’s findings are expected soon. But Israel has refused to cooperate with the Goldstone probe. And for the first time, Israel also refused to speak or communicate with international human rights groups such as Amnesty International and Human Rights Watch as they conducted their investigations of Israel and Hamas during and after the Gaza campaign.

That stance reflects a clear hardening in Israel as a plethora of human rights charges over the years related to Israel’s conduct in the West Bank and Gaza have begun to hit home. In recent years, the International Criminal Court in the Hague has ruled Israel’s self-described security fence illegal in areas where it departs from the so-called Green Line separating Israel from the Palestinian areas it won from Jordan in the 1967 Six Day War. Some of Israel’s generals, meanwhile, have been warned not to travel to Europe, where they potentially could face war crimes charges lodged with national law enforcement authorities there on the basis of a controversial legal doctrine known as universal jurisdiction.

Steinberg and other defenders of Israel’s conduct deem such legal actions “lawfare” — a new way to assail Israel’s fundamental legitimacy, they assert, that requires a new, hard-nosed response. Human rights groups say that they are applying to Israel only the same standards they apply everywhere else, including to Hamas, which the groups have also accused of war crimes.

During the Gaza campaign, Israel’s use of white phosphorus shells was an especially intense flashpoint of contention. Israel at first firmly denied using the weapons, whose contents burn deep into human tissue for sustained periods after initial contact. After press reports and photos documented shells with markings confirming they were white phosphorus weapons manufactured in the United States, Israel acknowledged their use but said they were not deployed as anti-personnel weapons, a violation of international law. Instead, Israel Defense Forces officials said, they were used only for illuminating areas and setting off protective smokescreens — uses allowed under international law.

In this new report, the military details for the first time how two types of weapons that use white phosphorous were deployed during the incursion. Contrary to an investigation by Human Rights Watch, Israel claims that the munitions were fired only at “open, unpopulated areas.” In the report, Israel acknowledges the “unfortunate reality” that white phosphorous hurt civilians and property, but justifies the phosphorous’s use by pointing out that it was “not designed or intended to be lethal or destructive.”

Marc Garlasco, a senior military analyst at Human Rights Watch, pointed to Israel’s description of one episode — an IDF attack at an elementary school sited at the headquarters of the United Nations Relief and Works Agency headquarters in Beit Lahia— as belying these claims. It was, he said, emblematic of how the report “pushed aside any level of responsibility.”

The report describes projectiles filled with white phosphorous that “unfortunately may have landed at the school.” But Garlasco pointed to photos of Palestinian civilians fleeing for safety as the school burns under a hale of shells, depicting, he said, a far more clear and catastrophic event than the report’s tentative language implies.

“I don’t really understand their semantics,” Garlasco said.

The same argument of intentionality is used in the infamous story of Abuelaish, the prominent doctor who has been involved in coexistence projects in Israel. Two tank shells were fired at his house, killing his three daughters. In the report, the incident is described in great detail. Israeli soldiers were responding to sniper shooting from a house adjacent to Abuelaish’s, the report states. When they saw what was characterized as “several figures moving suspiciously” at the Abuelaish house, they assumed they were dealing with spotters who were directing the snipers. After waiting 20 minutes, they shelled the house. When the soldiers heard screams coming from within, they ended the bombardment, according to the report.

These were “tragic deaths,” the report acknowledges, but the soldiers are absolved of any wrongdoing, as they “intended only to respond to a perceived threat, and in no way breached the Law of Armed Conflict.”

Overlaying these episodes is concern among some critics that Israel has quietly instituted a shift in military rules of engagement to de-prioritize protection of civilians during combat. Analysts Avishai Margalit and Michael Walzer cited a 2005 academic paper by Asa Kasher, who is an adviser to the IDF, and Major General Amos Yadlin, head of Israeli military intelligence, in which the two men stated bluntly, “Where the state does not have effective control of the vicinity, it does not have to shoulder responsibility for the fact that persons who are involved in terror operate in the vicinity of persons who are not.”

In a recent New York Review of Books article, Walzer and Margalit voiced concern that IDF policy in Gaza had been influenced by these views from senior level officials. In a subsequent letter to the editor, Hebrew University political scientist Shlomo Avineri, admitted the Israeli army was “less than meticulous” in protecting Palestinian civilians during the Gaza operation. But he said it was “preposterous” to expect, as the authors do, that Israeli soldiers’ care for the safety of Palestinian civilians should equal that of its care for the safety of Israeli civilians in a situation where they are, for example, seeking to rescue Israeli civilians held hostage by Hezbollah.

The IDF, for its part, denies any shift toward the doctrine advocated by Kasher and Yadlin.

Donatella Rovera, Amnesty International’s lead Jerusalem researcher who put together her organization’s detailed and critical report on Israel’s actions during the war, said that intention, in the end, is beside the point. The new report held no new revelations for her.

For her, it does not provide any more of a context for what she calls the “reckless decisions” of Israeli soldiers and commanders to use what she concluded were imprecise and needlessly destructive weaponry in densely populated areas.

“Whether they intended or not to hurt civilians is not something I can know,” Rovera said. “But at some point, absolutely recklessly dangerous behavior even when you know better becomes intentional.”

Contact Gal Beckerman at beckerman@forward.com.


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